93 Decision Citation: BVA 93-09300
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-16 391 ) DATE
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THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
vascular insufficiency as secondary to service-connected
residuals of a fracture of the right talus.
2. Entitlement to an increased (compensable) evaluation for
residuals of a fracture of the right talus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri. The veteran served on active duty from December
1948 to December 1949, and from December 1950 to May 1952.
In July 1991, the RO promulgated a rating decision
continuing the noncompensable evaluation for residuals of a
fracture of the right talus. The notice of disagreement
with the above determination was received in August 1991.
In February 1992, the RO continued the determination
previously entered. A statement of the case was issued in
March 1992. The substantive appeal was received in March
1992. In March 1992, the RO continued the determination
previously entered, and issued a supplemental statement of
the case. The representative, Disabled American Veterans,
submitted written arguments in August 1992. The case was
received and docketed at the Board in September 1992. The
representative submitted additional written argument in
December 1992.
The issues for appellate consideration have been expanded to
include entitlement to service connection for vascular
insufficiency as secondary to service-connected residuals of
a fracture of the right talus in view of Akles v. Derwinski,
1 Vet.App. 118 (1991); and Myers v. Derwinski, 1 Vet.App.
127 (1991).
REMAND
The representative, in his written argument, dated in
December 1992, raised the issue of entitlement to service
connection for vascular insufficiency as secondary to
service-connected residuals of a fracture of the right
talus. In a recent case, Harris v. Derwinski, 1 Vet.App.
180 (1991), the United States Court of Veterans Appeals
stated that, when two issues are "inextricably intertwined,"
a decision on one issue would have a significant impact on
the veteran's claim for the second issue, thereby reopening
the first issue. In order for the Board to reach a final
decision, both issues, when inextricably linked together,
must be considered. Therefore, the Board believes that, in
light of Harris the issue of whether new and material
evidence has been submitted to reopen a claim of entitlement
to service connection for vascular insufficiency as
secondary to service-connected residuals of fracture of the
right talus should be resolved prior to final appellate
consideration of the issue of entitlement to an increased
(compensable) evaluation for residuals of a fracture of the
right talus.
The representative, has directed the Board's attention to
the December 1991 examination conducted by a VA physician's
assistant. He requests that the case be REMANDED to the RO
to afford the veteran the benefit of an examination by a VA
doctor.
VA has the duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1992). The United States Court
of Veterans Appeals has held that the duty to assist the
veteran in obtaining available facts and evidence to support
his claim includes obtaining adequate VA examinations.
Littke v. Derwinski, 1 Vet.App. 90 (1990).
This duty also includes providing an additional examination
by a VA specialist, when recommended or indicated. Hyder v.
Derwinski, 1 Vet.App. 221 (1991).
Under the circumstances of this case, we are of the opinion
that additional assistance is required. The case is
REMANDED to the RO for the following:
1. The complete treatment reports of the
VA Medical Center in St. Louis, should be
obtained and associated with the claims
file.
2. The veteran should be scheduled for
examinations by VA specialists in
orthopedics and vascular diseases to
determine the etiology of vascular
insufficiency and the severity of his
residuals of a fracture of the right
talus. The examinations are to be
conducted in accordance with the
diagnostic procedures outlined in
Chapters 2 and 6 of the VA Physician's
Guide for Disability Evaluation
Examinations. All further indicated
special studies are to be conducted. The
examiners must correlate all diagnostic
studies and provide opinions as to the
etiology of vascular insufficiency. The
claims file, together with the above
requested evidence, should be made
available to the examiners prior to their
examinations.
Following completion of these actions, the RO should review
the evidence and determine whether the veteran's claims may
now be granted. If not, he and his representative should be
provided with a supplemental statement of the case including
application of 38 C.F.R. §§ 3.156(a), 3.310(a) (1992); and,
in view of Schafrath v. Derwinski, 1 Vet.App. 589 (1991),
should include application of 38 C.F.R. §§ 4.1, 4.2, 4.40,
4.41, 4.42 (1992) and any other relevant provisions of the
VA Schedule for Rating Disabilities with a discussion of the
history of the fracture of the right talus. A reasonable
period of time for a response should be afforded.
Thereafter, the case should be returned to the Board for
further appellate review.
The purpose of this REMAND is to obtain clarifying
evidence. No action is required of the veteran until he is
notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).